Global Tower Assets and Northeast Wireless Networks obtained a leasehold interest in Rome, Maine. According to Rome’s Ordinance applicants must get permission from Rome Planning Board to build a wireless communication tower.

The Ordinance includes a section that reads, “[a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals.”

The companies first asked for permission from the Planning Board to build the tower on April 8, 2013. The Board discussed the proposal on May 20, 2013 and held other meetings over the next few months. On February 10, 2014, the Planning Board voted to deny the application because the application was not complete. On March 10, 2014 the Planning Board published their decision. The decision was sent to the Board of Appeals for Review. The next day, the companies filed suit in the United States District Court for the District of Maine.

Part of their suit included complaints under the Telecommunications Act (TCA) of 1996. The TCA provides relief to those who are denied permission to build telecommunication facilities at the state or local level trough “final action”. However, the TCA does not define “final action”. In this case, the question is whether the administrative process ended. The companies filed their TCA challenge to the Town of Rome Planning Board’s decision before the decision was reviewed by the local board of appeals. In Maine there is a general requirement that land use and zoning appeals are first heard by a zoning board of appeals before they can be litigated in state court. Thus under Maine law “Rome necessarily made review by the board of appeals a prerequisite to judicial review.” There was an opportunity for the Planning Board’s decision to be overturned through an administrative (rather than judicial) process, meaning that the decision of the Planning Board was not a “final action” within the meaning of the TCA. The legislative history of the TCA does not reject a two-step administrative process at the local level to determine “final actions.” Because the administrative process, as defined by Rome’s Ordinance was not complete the District Court was correct to dismiss the complaints.

One of the goals of HF655 was to fill in “gaps” in the FCC rules when it comes to local regulation of the placement of new towers. The first two posts on this blog essentially addressed those circumstances. Another goal of the bill was to create a set of rules at the state level (which is then applied locally) that is identical to the FCC rules at the federal level. Several sections of HF655 are thus simply a state codification of the shot clock rules (2009 FCC ruling), and a state codification of the rules from the Spectrum Act (2014 FCC ruling) that streamline approval of activities that do not constitute a “substantial change.” The bill therefore

Requires local governments to act on new tower applications within 150 days of receiving a complete application for construction, consistent with the 2009 FCC ruling.

Requires local governments to act within 90 days of receiving a complete application for “initial placement or installationoftransmissionequipmentonwirelesssupportstructures,amodificationofanexistingtowerorexistingbasestationthatconstitutesasubstantialchange,orarequestforconstructionorplacementoftransmissionequipmentthatdoesnotconstituteaneligiblefacilitiesrequest,” consistent with both the 2009 and 2014 FCC rulings.

All records, documents, and electronic data submitted to the local government as part of the application process are treated as information subject to the Open Records Act (Iowa Code Chapter 22). Presumably this provision was acceptable to the industry because the bill put significant limitations on the types of information that the local government could request from the applicant in the first place.

HF655 contains a section governing the contractual relationship between a local government and wireless facilities provider when the provider leases public land for such facilities.

The local government must offer the market rate value for use of that land.

The term of the lease shall be for at least twenty years.

If the local government and the provider cannot agree on the market rate for the lease, the appraisals of a three-person panel of appraisers shall determine the market rate. Each party will appoint one appraiser and the two appointed appraisers shall select a third appraiser. Eachpartyshallbearthecostofitsownappointedappraiserandequallysharethecostofthethirdappraiser.

Each appraiser shall then independently appraise the appropriate market rate for lease of the land. The market rate shall then be set at the median value between the highest and lowest market rates determined by the three independent appraisers. However, if the median between the appraisals of the appraisers appointed by each party is greater than or less than ten percent of the appraisal of the appraiser selected by the two appraisers, then the appraisal of the appraiser selected by the two appraisers shall determine the rate for the lease.

The local government can then approve or reject the lease rate as determined by the appraisal process within fifteen days following completion and receipt of the appraisals. Failuretorejecttheleaseratewithinfifteendaysconstitutesapprovalofthelease rate.

A local governmentshallnotmandate,require,orregulatetheinstallation,location,oruseoftransmissionequipmentonautilitypole.

It does not infringe uponthejurisdictionof an historic preservation commission or local government toapproveordenyapplications forproposedalterationstoexteriorfeatureswithinanhistoric preservation district, or onlocalhistoriclandmarks.

The Iowa Legislature has sent a bill to the Governor that will create a set of uniform rules for local governments as they regulate the placement and alteration of wireless facilities (cell towers and other types of wireless facilities). HF655 is meant to work in harmony with previously adopted FCC rules, such as the shot-clock rule (here and here) and the rules implementing the Spectrum Act. In a nutshell, HF655 presents a list of 13 things that a local government cannot do when presented an application for a wireless facility. Straight from the bill, the list of 13 things that a local government cannot do:

Require an applicant to submit information about, or evaluateanapplicant’sbusinessdecisionswithrespectto,theapplicant’sdesignedservice,customerdemandforservice,or qualityoftheapplicant’sservicetoorfromaparticularareaorsite.

In February 2013 Smith Communications applied for a conditional use permit (CUP) to build a 300-foot-tall cell tower in Washington County, Arkansas. The property was zoned “Agriculture/Single-Family Residential,” and homes are located within 1/4-mile of the site. The criteria for granting a CUP are those general considerations typical for most zoning codes (compatibility with surrounding area, no endangerment to public health or safety, not injurious to use and enjoyment of nearby properties, etc.). The Washington County Planning Board approved the CUP, but nearby residents appealed the decision to the Washington County Quorum Court [Note: apparently a body akin to a Zoning Board of Adjustment]. The Quorum Court met twice – June 4 and June 24, 2013 – and held extensive hearings. The residents in attendance focused on safety, nearby property values, the tower’s “fit” with the surrounding area, and the “destruction” of scenic views. At the end of the June 24 meeting the Quorum Court voted 10-3 to reject Smith’s application. Four days later the county sent Smith an email containing a letter of denial that stated, among other things, that “the minutes and video of the first and last Quorum Court meetings will act as the County’s written reason for denial.” The minutes from the June 4 meeting were already available at that time; however, minutes from the June 24 meeting were not available until July 22. Smith appealed to district court citing a violation of the Federal Telecommunications Act (FTA). The district court determined that the county could not rely on the meeting minutes to constitute a legally adequate explanation for the denial under the FTA, ans so remanded the matter back to the Quorum Court with an order to explain the reasons for the denial in a writing separate from the minutes and written record. The county did so on April 18, 2014, largely citing the reasons advanced by the neighbors. The district court was satisfied with this, and so it was Smith appealing this ruling that brought the case before the 8th Circuit Court of Appeals.

Smith argued that under the district court’s authority to review FTA matters “on an expedited basis” the court should have simply “ordered the issuance of a permit” because the county had failed to provide an adequate written explanation for its denial. The Court of Appeals rejected this reasoning. It noted that in T-Mobile South the US Supreme Court recently held that “a locality may rely on detailed meeting minutes so long as the locality’s reasons are stated clearly enough to enable judicial review.” Thus, contrary to the district court’s first ruling, the county did not violate the FTA by relying on the meeting minutes.

What about the fact that the minutes from the June 24 meeting were not available until July 22? In T-Mobile South the Supreme Court also said that a local governments must provide written reasons for its denial “essentially contemporaneously” with the denial. The Court of Appeals concluded that the minutes of the June 4 meeting, which were available at the time of the denial, captured essentially the same concerns as were articulated on June 24. Representatives of Smith attended both meetings. “In light of these facts and the record before use, Smith received adequate notice of the reasons for the Quorum Court’s denial….[The county’s] failure to promptly make the latter meeting minutes available was, at most, a harmless error,” and did not require the district court to order immediate issuance of a CUP.

The Court of Appeals also went on to determine, after thoroughly reviewing all of Smith’s contentions and the record as a whole, that substantial evidence supported the Quorum Court’s denial of the CUP application. “Aesthetic concerns can be a valid basis on which to deny [a] permit, so long as the aesthetic judgment is grounded in the specifics of the case and not based on generalized aesthetic concerns…that are applicable to any tower, regardless of location.”

The Federal Telecommunications Act of 1996 (FTA) injected federal law into local control over the siting of wireless facilities (cell towers). The FTA requires, among other things, that a local board or commission’s denial of an application for a wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” This has come to be known as the “in writing” requirement. Since 1996 federal courts have come to different conclusions about what local boards and commissions must do to satisfy this requirement. Last year the U.S. Supreme Court agreed to take the case of T-Mobile South v. City of Roswell to clear up some of the confusion caused by the disagreements among the lower courts.

T-Mobile South applied to build a 108-foot cell tower in a residential neighborhood in Roswell, Georgia. The tower was to look like a pine tree, branches and all, though it would have stood at least twenty feet taller than surrounding trees. The city’s zoning department recommended approval subject to several conditions. At the city council’s public hearing four council members expressed concerns about the tower, and a motion to deny the application passed unanimously. Two days later, the city sent T-Mobile a denial letter. The letter did not provide reasons, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not formally approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later. T-Mobile filed suit, won in District Court, lost in the Eleventh Circuit Court of Appeals, and appealed to the U.S. Supreme Court. The Court issued its decision on January 14.

The following three points important to local governments result from the Supreme Court decision:

Local government must provide written reasons for denying a cell tower application. The Court determined that “supported by substantial evidence contained in a written record” imposes upon local governments a requirement to provide written reasons when they deny cell tower applications. The Court explained that it would be extremely difficult for courts to review local decisions on cell towers if localities did not state their reasoning in writing. The Court went on to stress, however, that “these rea­sons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.” Although not stated by the Court, it remains important that local boards and commissions base their decisions on the criteria found in the local ordinance when approving/denying cell tower applications.

The denial and written reasons do not need to be in the same document; i.e., separate detailed minutes satisfy this requirement. Local governments are not required to provide their reasons in the denial notice itself, but may state those reasons in some other written record. The practice in many communities is to let detailed minutes (or even a verbatim transcript) of hearings stand as the “written record” of board and commission decisions. The Court held that this practice satisfies the “in writing” requirement of the FTA. At the same time the Court gave advice to local governments that “if the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation – and adding expense to the taxpayer, the companies, and the legal system – while the parties argue about exactly what the sometimes voluminous record means.”

If the decision and written reasons are in separate documents they must be issued “essentially contemporaneously.” The Court further determined, however, that because the FTA requires a wireless company challenging a denial to commence its lawsuit within 30 days of the denial, the denial and written reasons, if separate documents, must be issued “essentially contemporaneously.” “Because an entity may not be able to make a considered decision whether to seek judicial re­view without knowing the reasons for the denial …the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.” The Court suggested that “if a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial … and instead release it along with its reasons once those reasons are ready to be provided.”

The Court concluded that because Roswell did not issue its denial and written reasoning (in the form of minutes) “essentially contemporaneously” it had violated the “in writing” requirement of the FTA. The case was a loss for Roswell, but for local governments generally it affirms the practice of many local governments that do not issue formal denials containing the rationale for the decision, but instead rely on the minutes for the rationale.

Last November I posted four pieces discussing the FCC’s October 2014 declaratory ruling explaining/interpreting Section 6409(a) of the Spectrum Act (aka the Middle Class Tax Relief and Job Creation Act), which reads:

[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

(Advice: You may need to read or reread the four pieces for the necessary background to follow the rest of this post).

Yesterday I had a good discussion with Dustin Miller of the Iowa League of Cities about how the 60-day deadline for making decisions on “eligible facilities requests” found in the Spectrum Act can be squared with the 90-day deadline for collocations found in the 2009 FCC declaratory ruling. He provided me with copies of some valuable documents that the PCIA and the National League of Cities worked on together and recently released, including a Wireless Facility Siting Model Chapter for local ordinances, and accompanying Cover Sheet and Checklist. With regard to collocations, the 60-day deadline (from date application is filed) found in the Spectrum Act technically only applies to collocations that do not result in a substantial change to the physical dimensions of the existing facility as that term is defined in the 2014 ruling. So for example, deploying a new antenna array that protrudes more than 6 feet from the edge of an existing tower located in the public ROW would not fall under the new ruling (with its 60-day deadline) because that would be a substantial change to the physical dimensions of the tower. Instead, such an application would be covered by the 90-day deadline for collocations as set forth in the 2009 ruling.

The conversation with Dustin revolved around the hair-splitting that often will be required of local governments to know whether the 60-day or 90-day deadline applies in any given circumstance. Site plans are not always as detailed as would be necessary to apply the FCC rules, equipment is constantly evolving in a way that muddies the interpretation of the rules, and so on. At a minimum local governments should require wireless industry applicants to clearly state in their applications whether they believe the 60-day (collocation involving no substantial change) or 90-day (collocation that is a substantial change) deadline applies, and provide substantiating details sufficient for the local government to make its own judgment. If an application is mistakenly treated as one with a 90-day deadline but belongs in the 60-day category, however, it must be deemed automatically approved any time after the 60th day, upon notification by the applicant. Of course, disagreement over the 60 vs. 90 judgment in and of itself can give rise to litigation, as the wireless industry will want to establish precedents for putting more types of modifications into the 60-day category.

One potential solution for local governments is the safe approach – Simply apply the 60-day deadline to all collocation requests, whether or not they meet one of the tests for determining substantial change.

As always, of course, none of this is legal advice. That is what your city or county attorney provides!

The National League of Cities is sponsoring a webinar tomorrow on the cell tower topic. This is the relevant information:

Wireless communications services are vital to cities because it improves the ways residents can get online and access information. In an effort to increase Internet access through wireless networks, the Federal Communications Commission (FCC) has developed a set of rules around wireless siting practices that cities will need to adhere to. Panelists on this webinar will discuss the importance of wireless broadband for their communities and how local governments are getting ready to respond to the new FCC rules.

Today the US Supreme Court issued its ruling concerning the “in writing” requirement of the Federal Telecommunications Act. My previous post explaining the case, and the disagreement among the federal circuit courts, is here.

T-Mobile South submitted an application to build a 108-foot cell tower on a vacant lot in a residential neighborhood in the city of Roswell, Georgia. The company proposed a tower designed to look like a pine tree, branches and all, though this one would have stood at least twenty feet taller than surrounding trees. The city’s zoning department found that the application met the requirements of the relevant portions of the city code, and recommended approval of the application subject to several conditions. The city council then held a public hearing at which a T-Mobile South representative and members of the public spoke. Five of the six members of the city council then made statements, with four expressing concerns and one of those four formally moving to deny the application. That motion passed unanimously. Two days later, the city sent T-Mobile South a letter stating that its application had been denied. The letter did not provide reasons for the denial, but did explain how to obtain the minutes from the hearing. At that time, only “brief minutes” were available; the city council did not approve detailed minutes recounting the council members’ statements until its next meeting, twenty-six days later.

T-Mobile filed suit, alleging that the council’s decision violated the “in writing” requirement of the Federal Telecommunications Act (FTA) that says that a denial of an application for a wireless facility “shall be in writing and supported by substantial evidence contained in a written record.” The District Court agreed with T-Mobile. On appeal the Eleventh Circuit reversed. Noting that T-Mobile had received a denial letter and possessed a transcript of the hearing that it arranged to have recorded, the Eleventh Circuit found that this was sufficient to satisfy the “in writing” requirement.

The US Supreme Court first determined that “supported by substantial evidence contained in a written record” imposes upon local governments a requirement to provide reasons when they deny applications to build cell towers. It would be extremely difficult for a reviewing court to carry out its review of a local decision if localities were not obligated to state their reasons in writing. The Court went on to stress, however, “that these rea­sons need not be elaborate or even sophisticated, but rather…simply clear enough to enable judicial review.” In this regard, it is clear that Congress meant to use the phrase “substantial evidence” simply as an administrative “term of art” that describes how an administrative record is to be judged by a reviewing court.” It is not meant to create a substantive standard that must be proved before denying applications.

Local governments are not required to provide their reasons in the denial notice itself, but may state those reasons with sufficient clarity in some other written record such as in detailed minutes. At the same time, the Court agreed with the Solicitor General’s brief that “the local government may be better served by including a separate statement containing its reasons….If the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation – and adding expense to the taxpayer, the companies, and the legal system – while the parties argue about exactly what the sometimes voluminous record means.”

The Court further determined, however, that because the FTA requires the recipient of a denial to seek judicial review within 30 days from the date of the denial, the denial and written reasons, if contained in separate documents, must be issued “essentially contemporaneously.”

Because an entity may not be able to make a considered decision whether to seek judicial re­view without knowing the reasons for the denial of its application, and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.

The Court observed that this rule ought not to unduly burden localities given the range of ways in which localities can provide their reasons. Noting that the FCC “shot clock” declaratory ruling [discussed in the blog here] allows localities 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications, the Court suggested that “if a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.”

The Court concluded that it was acceptable for Roswell to provide its denial and written reasoning (in the form of detailed minutes) in separate documents, but did not issue these documents “essentially contemporaneously.” As such, the city did not comply with the statutory obligations of the FTA. The Court remanded the case to the Eleventh Circuit to address the question of the appropriate remedies.

While the bulk of the October 21 FCC ruling addressed Section 6409(a) which addresses collocation, modification, and replacement of wireless facilities, it also contained a section meant to clarify the 90- and 150-day presumptive deadlines (the “cell tower shot clock”) set forth by the FCC in a 2009 ruling, and a section to address industry concerns about local governments giving preference to siting wireless facilities on local government property.

Shot clock clarifications. Since 1996, Federal Telecommunications Act (FTA) Section 332(c)(7)(B) has required local governments to act on applications for personal wireless service facilities within a “reasonable period of time.” The 2009 order set presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing personal wireless service antennas on existing towers) and 150 days for all other applications. The ability of the FCC to set these rules governing local review was approved by the US Supreme Court in 2013.

The FCC clarified that the presumptively reasonable 90- and 150-day deadlines begin to run from the date of filing (with the exceptions noted below), the application. The deadlines may be extended only by a local government determination that the application is incomplete. The local government must inform the applicant of the incompleteness within 30 days of the initial filing, and must clearly and specifically delineate in writing the missing information. The clock will resume when the information is provided, but may be tolled again if the local government notifies the applicant within 10 days that the application remains incomplete. This notification cannot contain requests for new information beyond what was previously requested.

How does the 2009 ruling square with the October 21 ruling, particularly with regard to the deadlines for action on collocations (discussed in yesterday’s blogpost)? The FCC first pointed out that Section 332(c)(7) deals only with personal wireless service facilities (cell phone equipment), which is a much narrower focus than “wireless facilities” – the focus of Section 6409(a) of the Spectrum Act. The FCC also noted that some collocation applications under Section 332(c)(7) do not constitute “eligible facilities requests” under Section 6409(a). Recognizing that the provisions cover different (though overlapping) types of applications, the FCC declined to make any “changes or clarifications” to the 2009 ruling that would harmonize it with the October 21 ruling. Local governments are thus left to muddle through the distinctions in collocation applications to determine the appropriate timeline to which they must adhere.

DAS facilities. The FCC further clarified that the shot clock deadlines apply to Distributed Antenna Systems (DAS) applications. DAS are small facilities that are increasingly being deployed to fill in coverage gaps and enhance capacity in congested areas (urban corridors, stadiums, hotels, convention centers, etc.)

Preference for deployment on government property. The wireless industry has expressed concerns over local governments giving preference to siting wireless facilities on local government property, arguing that it unreasonably discriminates among providers by limiting the siting flexibility of subsequent wireless entrants in a given area. The FCC recognized that some such local policies – those that “pressure” applicants to use local government property, coupled with regulations that make it nearly impossible to site facilities elsewhere – may be discriminatory as applied. Nevertheless, the FCC declined to find that such preference is discriminatory as a matter of course, and so refused to make a rule that municipal property preferences are per se unreasonable.